Affirmative action is a hot topic for businesses. Since the 2023 US Supreme Court decision in Students for Fair Admission v. Harvard University and University of North Carolina, which held that attempts to increase diversity in universities by taking race into account in admissions decisions were not permissible, employers in the United States and beyond have been reviewing their diversity programs. As many employers have programs covering multiple countries, we provide a high-level review of the scope of affirmative action in a range of jurisdictions. For further advice on practical and permissible ways to promote diversity and the parameters of affirmative action across these and other jurisdictions, please contact your usual Mayer Brown contact or one of the listed authors.
Brazil
Affirmative action in the workplace is permitted in Brazil in certain circumstances. Affirmative action aimed at minority groups can be adopted by employers in order to contribute to the promotion of equitable conditions for equal opportunities, inclusion and diversification of certain people or groups subject to discrimination.
Employers are permitted to take affirmative action in Brazil in certain circumstances.
There is no legal obstacle for the adoption of reasonable affirmative action aimed at minority groups and these initiatives can be adopted by employers in order to contribute to the promotion of equitable conditions for equal opportunities, inclusion and diversification of people or groups subject to discrimination, such as the afro-Brazilian community, disabled individuals, women and LGBTQIA+ population. Initiatives in this regard will not be deemed discriminatory, provided that they are aimed at socially and historically underrepresented groups, and are in line with the employer's social responsibility and the principle of non-discrimination.
Brazil's Federal Constitution and ordinary laws forbid employers to take any discriminatory actions towards employees upon admission, duration or termination of employment contracts related to sexual orientation, origin, race, color, marital/civil status, family circumstances, age or physical conditions (disability).
Also, it must be noted that companies with 100 or more employees must have between 2% and 5% of their workforce made up of disabled employees, as provided by Law No. 8,213, of 1991.
Finally, Brazil has enacted an equal pay law(Law No. 14,611/2023) that provides for equal pay and remuneration criteria between men and women. Under the provisions of the new equal pay law, employers with 100 or more employees are required to publish a salary transparency and remuneration criteria report prepared by the Ministry of Labor every six months and, if any inequality is verified, the employer will be required to prepare and submit an action plan for mitigating gender inequality in workplace with the adoption of certain affirmative actions.
China
Affirmative action in the workplace is permitted in China in certain circumstances. Employees are entitled to equal employment under PRC law. The Labor Law also stipulates that where there are special provisions in laws and regulations in relation to the employment of the disabled, ethnic minorities, and veterans, such provisions will apply.
Employers are permitted to take affirmative action in the workplace in China in certain circumstances.
The PRC law provides that an employee is entitled to equal employment. It is unlawful to discriminate against a (potential) employee on the basis of ethnicity, race, gender, religious belief, disability, residence status (i.e., rural worker or urban worker), or physical status (e.g., whether they are a carrier of epidemic pathogens such as hepatitis B).
The Labor Law of the People's Republic of China (中华人民共和国劳动法) ("Labor Law") also stipulates that where there are special provisions in laws and regulations in relation to the employment of the disabled, ethnic minorities, and veterans, such provisions will apply.
A ratio-based employment arrangement mechanism for disabled persons was established by the Law of the People's Republic of China on the Protection of Disabled Persons (中华人民共和国残疾人保障法) and the Rules on the Employment of Disabled Persons (残疾人就业条例). Pursuant to the mechanism, the proportion of disabled employees of an employer must be no lower than 1.5% of total staff, and any employer that fails to meet the aforesaid proportion must pay a disabled persons employment surcharge. This arrangement hence arguably encourages employers to recruit the disabled persons to meet the statutory proportion with less consideration of their competence.
With regard to veterans, according to the Veteran Support Law of the People's Republic of China (中华人民共和国退役军人保障法), during the recruitment, entities such as public institutions and state-owned enterprises may appropriately relax the requirements on age and education qualification for veterans, with priority given to veterans under the same conditions. For employers in the private sector, the government promulgated several incentives for employers to hire veterans in 2022 (关于引导和鼓励民营企业招用自主就业退役军人的意见), including tax relief, financial support and priority in the land use.
This summary was prepared with the assistance of Meng Bo Law Office, a PRC law firm based in Shanghai, with which Mayer Brown has a close working relationship.
France
Employers are permitted to take affirmative action in the workplace in France in certain circumstances.
In France, there is a general principle of non-discrimination, including in relation to affirmative action, notably on the ground of belonging (real or assumed) to a race or ethnicity, religion, gender, age, disability, health condition, sexual orientation, pregnancy, family situation, physical appearance, residence place, vulnerability due to economic situation, etc.
The French legislator has enacted laws aimed at reducing discrimination in the workplace against women (notably in terms of remuneration and opportunities of promotion) and disabled employees (in terms of access to employment). These measures are intended to incentivize employers.
Germany
Affirmative action in the workplace is permitted in Germany in certain circumstances. A policy that generally gives priority to a protected group, however, would be unlawful. A reasonability assessment would need to take place to take into account the circumstances of each case.
Employers are permitted to take affirmative action in the workplace in Germany in certain circumstances.
German law includes special provisions intended to prevent or eliminate discrimination on the grounds of race or ethnic origin, gender, religion or belief, disability, age or sexual identity (the "protected attributes").
That said, the General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz, "AGG") provides that, under certain circumstances, different treatment is permissible. For instance, differentiation in relation to a protected attribute will be permissible if such attribute constitutes an essential and determining occupational requirement because of the nature of the work to be performed or the conditions of its performance and determining occupational requirement, provided that the purpose is lawful and the requirement is reasonable. Also, there are special circumstances under which a different treatment with respect to religion, belief, and age is accepted.
As a general rule, a difference in treatment will be permissible if suitable and appropriate measures are taken to prevent or compensate for existing disadvantages on account of one of the protected attributes. As a consequence, a policy that generally gives priority to a protected group would be unlawful. A reasonability assessment needs to take place taking into account the circumstances of each situation separately.
Hong Kong
Affirmative action in the workplace is permitted in Hong Kong in certain circumstances. The anti-discrimination ordinances provide that certain "special measures" reasonably intended to address particular inequality will not amount to unlawful discrimination.
Employers are permitted to take affirmative action in the workplace in Hong Kong in certain circumstances.
In Hong Kong, it is unlawful for an employer to treat an employee less favorably (i.e., to discriminate against an employee) on the ground of sex, pregnancy, marital status, breastfeeding, disability, family status and race (the "protected attributes"). That said, the anti-discrimination ordinances provide that certain "special measures" reasonably intended to address particular inequality will not amount to unlawful discrimination.
"Special measures" reasonably intended to address the following areas will not be unlawful. The areas are to (a) ensure that persons with a protected attribute have equal opportunities with other persons in the circumstances covered by the anti-discrimination ordinances; (b) afford persons with a protected attribute goods or access to services, facilities or opportunities to meet their special needs in relation to their employment; and (c) afford persons with a protected attribute grants, benefits or programs, whether direct or indirect, to meet their special needs in relation to their employment.
Singapore
Although there is no explicit regulation or legislation on this issue, it can be implied under the anti-discrimination laws in Singapore that employers are permitted to take affirmative action in the workplace in Singapore in certain limited circumstances.
Although there is no explicit regulation or legislation that provides for this, it can be implied under the anti-discrimination laws in Singapore that employers are permitted to take affirmative action in the workplace in Singapore in certain limited circumstances.
In Singapore, there are currently no express provisions or regulations which provide for, or prohibit, affirmative action in the workplace. Similarly, there are currently no binding laws on workplace discrimination. Despite this, employers are generally expected to abide by the guidelines set out by the Tripartite Alliance for Fair and Progressive Employment Practices (TAFEP), an agency set up by the Ministry of Manpower in 2006 to promote fair and progressive employment practices in the workplace.
In 2021, the government announced that these guidelines are expected to be enshrined in legislation, which is meant to complement the existing guidelines and is expected to be enacted in 2024. Since then, the Singapore government had accepted the final set of recommendations in the final report, that was released in August 2023 by the Tripartite Committee on workplace fairness, which put forth several recommendations for the upcoming workplace discrimination legislation. It is expected for this Workplace Fairness Legislation to be enacted by some time in the second half of this year of 2024.
Most notably, recommendation 1 prohibits workplace discrimination in respect of "protected characteristics": (i) age, (ii) nationality, (iii) sex, marital status, pregnancy status, caregiving responsibilities, (iv) race, religion, language, and (v) disability and mental health conditions. However, employers will still be allowed to consider a protected characteristic in employment decisions if it is a "genuine and reasonable job requirement" (recommendation 8). For example, when the job requires the applicant to be able to speak certain languages such as language tutoring, the employer is allowed to use language proficiency as a metric to assess potential hires.
There are two exceptions to the recommendation to prohibit discrimination: first, for religious organizations to make employment decisions based on religion and religious requirements (recommendation 10), and second, for employers to favor persons with disabilities and seniors aged 55 years and above over other groups in hiring decisions (recommendation 11). Overall, these recommendations show that the government is willing to take affirmative action to ensure that meritocracy does not come at the expense of the country's diversity goals.
This summary was contributed by Mayer Brown PK Wong & Nair Pte. Ltd., now in a Joint Law Venture with Mayer Brown.
United Arab Emirates
Affirmative action in the workplace is permitted in the UAE in certain circumstances. For example, rules and regulations that aim to enhance the participation of UAE citizens in the labour market (i.e., Emiratization rules and regulations) would not constitute discrimination.
Employers are permitted to take affirmative action in the workplace in the UAE in certain circumstances.
Article (4) of the UAE Labour Law, issued by Federal Decree Law No. 33 of 2021, provides that any discrimination on the basis of race, color, sex, religion, national or social origin or disability which would have the effect of nullifying or impairing equality of opportunity, or prejudicing equal treatment in the employment, the maintenance of a job and the enjoyment of its benefits, is prohibited. Employers are prohibited from discriminating against workers in jobs involving similar tasks.
Article (4) also provides that the rules and regulations that aim to enhance the participation of UAE citizens in the labour market (i.e., Emiratization rules and regulations) would not constitute discrimination.
The Ministry of Human Resources and Emiratization (MoHRE) issued a decision to raise Emiratization rates to 2% annually for skilled jobs in the private sector entities with 50 or more employees and to achieve an overall rate of increase by 10% by 2026. This is accompanied by granting incentives to institutions that perform qualitatively in the training and employment of UAE citizens. Non-compliant entities will have to pay an amount of AED 6,000 ($1,635) monthly, starting from January 2023, for every citizen who has not been employed.
Starting in 2024, private sector entities with a workforce of 20 to 49 employees are required to hire at least one UAE citizen, and from 2025, such entities will be required to hire at least two Emirati citizens. This requirement is applicable to entities operating in fourteen sectors, including information and communications; financial and insurance activities; real estate activities and professional, scientific and technical activities. As such, Emiratization can be considered as an affirmative action policy of the United Arab Emirates which gives preferred hiring status to Emirati nationals over expatriates.
Affirmative action (known as "positive action") is permitted in the United Kingdom in certain circumstances. There are two types of lawful positive action: general positive action and positive action in the context of recruitment and promotion. The line between lawful positive action and unlawful positive discrimination is, however, a narrow one.
Employers are permitted to take positive action in the workplace in certain circumstances (note that the position on positive action is different in Northern Ireland and falls outside the scope of this summary).
Under the Equality Act 2010, an employer can take positive
action in the workplace in order to help level
the playing field for those who share a "protected
characteristic" (i.e., age, disability, gender reassignment,
marriage and civil partnership, pregnancy and maternity, race,
religion or belief, sex, sexual orientation). There are two types
of lawful positive action:
- General positive action: Where an employer reasonably thinks those who share a protected characteristic suffer a disadvantage connected to the characteristic, have particular needs or are disproportionately underrepresented in an activity, the employer can take action which is a proportionate means of achieving the aim of (i) enabling or encouraging the protected group to overcome or minimize the disadvantage; (ii) meeting any different needs; or (iii) enabling or encouraging participation in that activity.
- Positive action in the context of recruitment and promotion: This is permitted where an employer reasonably thinks those who share a protected characteristic suffer a disadvantage connected to the characteristic or are disproportionately underrepresented in an activity. More favourable treatment of those with a protected characteristic is only permitted in these circumstances if (i) they are as qualified as their counterparts without the protected characteristic, (ii) there is no policy of treating those with a protected characteristic more favorably, and (iii) the action is a proportionate means of achieving a legitimate aim.
The line between lawful positive action and unlawful positive discrimination is a narrow one and can be challenging for an employer to navigate. For example, giving preferential treatment to those who share a protected characteristic without meeting the requirements for lawful positive action would be unlawful positive discrimination. However, it is worth noting that some forms of positive discrimination are lawful—for example, the duty to make reasonable adjustments for disabled people or the preferential treatment of women on maternity leave in a redundancy situation.
United States
Employers in the United States are permitted to take action to increase the diversity of their workforce related to certain protected characteristics, so long as they do so without violating anti-discrimination laws. Federal government contractors are also explicitly required to undertake certain defined "affirmative action" steps to measure and address inequality in the workplace. However, these steps do not generally include positive discrimination.
The United States federal, state and local laws include anti-discrimination provisions that prohibit discrimination against employees based on a wide variety of protected characteristics, including race, sex, national origin, religion, pregnancy, disability, sexual orientation, genetic information, gender identity, veteran status and many others.
Employers in the United States are permitted to take action to increase the diversity of their workforce related to protected characteristics, especially race, gender, ethnicity and LGBTQ status, so long as they do so without violating the anti-discrimination laws. In addition, federal government contractors are explicitly required to undertake certain defined "affirmative action" steps to measure and address inequality in the workplace for women and minorities, as well as for veterans and disabled persons. However, these steps do not generally include positive discrimination, e.g., hiring or promoting women or minorities in preference to others.
The Americans with Disabilities Act and similar state and local laws do require employers to take affirmative steps to accommodate qualified persons with a disability, as defined by the law. These steps can include a variety of job modifications or assignment modifications so long as the individual is qualified to perform the essential functions of the job with such a reasonable accommodation.
The US government's affirmative action policies rest on a determination that explicit or invisible discrimination is likely to result in reduced employment and career opportunities for women and minorities in the absence of attention to avoid that result. Diversity efforts by employers have also been generally viewed favorably as a reflection of the goals of anti-discrimination laws, as well as based on societal pressure for perceived fairness and opportunity in employment.
However, in recent years, advocacy groups and individuals in the United States have sometimes argued that certain steps to increase diversity actually result in impermissible positive discrimination. The US Supreme Court decision in Students for Fair Admission v. Harvard University and University of North Carolina in 2023 held that attempts to increase diversity in universities by taking race into account in admissions decisions were not permissible, leaving the exact line between permissible and impermissible steps to future litigation. Employers have subsequently reviewed their diversity programs with an eye to retaining effective diversity programs while not running afoul of anticipated future court decisions.
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This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.
